Staying in Compliance with Erosion Controls

CONTRACTORS WHO WORK IN EROSION CONTROL AND stormwater management have a tough job.

Much of the work they do is precautionary or preventive. They not only have to prevent runoff and stabilize slopes, but also try to control the flow of stormwater. Equally as important, they have to make sure it’s done in the proper manner—which means avoiding fines and penalties—and stay within budget.

Staying compliant can be tough, but the penalty for not doing it is tougher, as one large retail developer found out back in 2008. It was levied a fine of $100,000 (the largest fine up to that point in New York State history) by the state’s Department of Environmental Conservation (NYSDEC) for violations of the SPDES (State Pollutant Discharge Elimination System) permit for a large commercial project.

The company was fined when officials discovered that it totally disregarded the phasing and sequencing plan it submitted in its SWPPP (StormWater Pollution Prevention Plan). The developer also didn’t properly maintain the BMPs that were installed, including silt fencing, perimeter swales and temporary sediment traps or basins.

Compliance is not only a big deal, it’s a big job. “The key to it is having someone on your team who’s really knowledgeable,” said Sarah Haggard, CPESC, owner of Bakersfield, California-based Deluge Consulting, Inc., a SWPPP consulting firm.

“You need someone who takes the initiative to stay up-to-date about all the current federal, state and local regulations, because they change so quickly.”

Haggard says that a project’s budget is the number-one obstacle to avoiding violations. Often, developers and general contractors vastly underestimate what it’ll take to purchase BMPs and keep them working well enough to prevent erosion on a site.

Brad Cline, CPESC, owner and president of Cline Environmental, Inc., a soil-erosion contracting and consulting firm in Bono, Arkansas, says large, nationwide general contractors do a better job with this, because they “feel like they have targets on their backs” due to the size of their operations. “They’ll hire me even without a low bid, and never question anything I suggest. They want to make sure they get a good, quality job.”

One retail supercenter chain has been zapped with huge fines in the past. So now, this company goes “above and beyond,” when building new stores. For example, when Cline is hired as the erosion-control contractor for one of this chain’s projects, his BMP budget can be as high as $150,000. By contrast, a smaller developer, building the same size store on the same size lot, would typically only budget $15,000 for erosion control.

Aaron Mlynek is the technical director for construction and stormwater compliance at Eden Prairie, Minnesota-based Westwood Professional Services, a multi-state, multidisciplinary engineering and consulting firm. He says that because what we’re looking for is temporary stabilization, the focus is often placed on sediment control, not erosion control, and those are two different things.

What we really want to do is to keep the soil from becoming sediment in the first place. The sediment-control BMPs should be the safety net that catches whatever soil has escaped the erosion-control measures.

“If you’re going to be out there with exposed soil for six months, and you’re constantly relying on sediment controls, such as silt fencing or fiber logs to do everything, you’re losing the battle. If you aren’t using erosion-control BMPs, such as erosion-control blankets (ECBs) or straw or wood-fiber hydromulch over the exposed ground, your sediment controls won’t be nearly as effective.”

It can be a case of ‘penny wise, pound foolish.’ Silt fencing is cheaper upfront than hydromulching in per-volume cost. However, by the end of a project, hydromulching could turn out to be less expensive because there’s little to no maintenance involved. And, the resulting vegetation helps the sediment controls—the silt fencing, coir logs and inlet protection devices—function better, because they’re not being overloaded.

Even if hydromulch is used, many times the cheapest material is used, which usually lasts about three months. A better choice would be bonded fiber matrix (BFM) or flexible growth media (FGM), that typically last 12 to 18 months. While you know that three months is not enough time to get the project completed, the client may not be willing to budget for more costly materials.

It all comes back to money, said Mlynek. “Those products are 50 percent more expensive than the paperblend hydromulch, so a lot of people are apprehensive about using them for temporary stabilization.”

Phasing a project—breaking it down into smaller chunks—is not only a good way to stay free of violations and fines, it also saves on total costs. Cline has a real-world example. “We had a development that was approximately 150 acres. Instead of phasing the project, taking it in small bites, they clear-cut and mass-graded the whole site at one time.”

This prevented Cline’s company from installing temporary erosion controls and temporary slope stabilization BMPs. Instead, his firm had to build large, more expensive sediment basins to capture and control runoff. “They could have stabilized that site for around $60,000. Instead, they probably spent another $70,000 re-grading those areas throughout the course of the project, plus the $30,000 it cost to build the ponds. If they had phased it, we could have minimized those costs, and, also, minimized the amount of sediment that was discharged from the site.” Maintenance Staying out of trouble is often a matter of maintenance. You can put in all the beautiful BMPs you want, but if you don’t clean them out and repair them regularly, you’re risking fines for not being in compliance. Lack of maintenance, unfortunately, is extremely common. And again, budget is the main reason why.

Barry Schilling, CISEC, CESSWI, compliance manager at McCrory Construction Company, LLC, headquartered in Columbia, South Carolina, says that some grading contractors he’s worked with put in such low bids that funds for maintenance often get omitted.

When he’s told there’s no money in the fund left to clean out or fix BMPs, he goes to the project manager and says, ‘It’s cheaper than paying a fine. We’ll tell the grading contractor, ‘Look, we’re willing to split some of the cost with you, but if you don’t do it and we get fined, that fine is going to be handed directly to you.’ That seems to help.”

Once a project’s finish line is in sight, it’s even harder to get the people holding the purse strings to pony up, say, another $20,000 for something that’s only going to be there for another couple of weeks. “They’ll say, ‘We’re so close to the end of the project, let’s let it slide.’” said Cline. Their attitude is, ‘Wait and see if we get caught. If the city or state guy says something, then we’ll fix it.’”

Enforcement, fines and inspections What they’re betting on is a lack of enforcement. This does vary quite a bit across the country, according to Mlynek, who works in 30 different states.

Cline says that his home state, Arkansas, doesn’t have a great many inspectors. Still, enforcement does happen. “I become the guy that cries ‘Wolf!’ warning these companies that they’re risking fines. But then, every once in a while, the wolf will come by and show his teeth.”

Fines of $1,500 per day, for every day a violation exists, are typical. If an inspector looks at your records, and sees that something wasn’t done correctly for 15 days, that’s $1,500 times 15. You can do the math; it’s a tidy sum, one that could wipe out the entire profit from a job.

Seven days are usually allowed to make corrections, and extensions are easy to get.

“As long as an inspector can see that you’re actively working on addressing a problem, you can get an extension,” said John Baker, CPESC, CPSWQ, CESSWI, QSD, regional environmental manager at Burnsville, Minnesota-based Ames Construction, Inc. Fines enter the picture only when an official “sees the same problems, over and over, and it takes you weeks and weeks to fix them.”

Some companies, if they don’t see a lot of enforcement, are tempted to cut corners. Mlynek puts it this way: if you frequently see state troopers on the road, you’ll probably obey the speed limit, but if you don’t, you’ll probably go as fast as you’re comfortable going in order to get to your destination as quickly as possible.

Having construction debris and trash on your site is like waving a red flag in an inspector’s face. Generally, the better your site looks, the less likely you are to get dinged. Construction entrances, in particular, should be kept neat and tidy.

Danielle Kurek, CESSWI, CPESC, QSD, has been an environmental compliance representative for several construction companies, and is in the process of launching her own SWPPP consulting business in Dallas, Texas. “The biggest offenders are really easy to spot, as they’re typically on the perimeters. An inspector driving into your site has probably already seen your messed-up silt fence, without even getting get out of the car.”

If an inspector sees signs of obvious lack of maintenance, such as all your straw wattles being ripped open, he’ll dig deeper, and look for more violations. He’ll want to look closely at your outfalls, or anyplace there’s a potential for sediment-laden water to escape the site.

One of the first things an inspector will want to see is the SWPPP binder with all of the permits, inspection reports, NOIs (Notices of Intent) and records of how you corrected any deficiencies. Make sure that it’s kept up-to-date and everything is in there that should be.

“The saying goes, ‘If you don’t have a report to show that I’ve inspected something, then I didn’t inspect it,’” says Schilling.

Here are some of the biggest items on an inspector’s ‘hit list:’

Silt fence: A silt fence is big, and is usually the first thing an inspector will spot. “It’s always either getting knocked down, or getting too much soil up against it, without getting cleaned out,” says Schilling. The inspector will check to see that it’s been trenched in at least six inches, that there are no rips, that water isn’t undercutting it, and that it isn’t full of sediment.

Inlet protection: Are the ‘witch’s hats’ or other inlet devices clean, or are they full of trash?

Construction entrances /exits: He’ll want to see a rock, gravel or asphalt driveway, so vehicles and heavy equipment aren’t taking mud off the site.

“Track-out is a big deal,” said Cline, “particularly in residential construction. If you can keep the subcontractors parked on the side of the street, and using one entrance that’s rocked or hard-surfaced, then you’ve got the problem licked.”

Before building a construction entrance, Schilling looks at the soils report. Clay and sandy soils act differently in the rain. When dealing with clay, he makes sure that the site has either an automated tirewasher or pressure-washer available.

After a while, the rocks or gravel get beaten down.

Eventually, as dirt falls off tires, it fills in the crevices between the rocks, so they’ve got to be turned, rinsed and replenished.

Concrete washout areas: The inspector will want to see an appropriate, contained area for washing out residues from wheelbarrows or mixers. If that slurry should run off into a nearby body of water, it can raise the pH so high that it becomes extremely toxic to fish.

Mishandled concrete washout is one of Kurek’s ‘pet peeves,’ as she sees it often, and it’s a sure ticket to citations. “It’s usually just the guys being sloppy.

They either don’t have a containment area, or it’s not big enough. I often see people using the same one, over and over again, too frequently to let it dry out.”

Fortunately, handling this right is fairly easy. Sometimes the washout will just evaporate. If you let it dry, you can take a hammer to it and break it up, then toss it into the regular garbage.

Having the right person in charge of SWPPP compliance can go a long way towards keeping your company where it needs to be. Schilling says his company eventually learned that they needed a dedicated person to oversee this, someone with national certifications, ‘tons’ of classes and years of experience. “We’ve found that that keeps us out of trouble,” he says.

In many ways, we are fortunate that, in our chosen profession, we are able to help people when certain disasters occur: the tornadoes in Missouri, Oklahoma, Louisiana and Georgia, the flooding in Louisiana, the snows in the northeastern part of the country, the rain in California, and the snow in Colorado....

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